Law expert challenges employers

Two Canadian lawyers in New Zealand are divided over good-faith bargaining. Gina Fiorillo was brought here by the CTU while Henry Dinsdale was sponsored by the Employers Federation. LIBBY MIDDLEBROOK reports.


Employers are not generally viewed as a peculiar bunch in the international market, but their strong opposition to the good-faith bargaining provisions of the Employment Relations Bill is slightly odd, according to a visiting Canadian labour lawyer.

Vancouver-based Gina Fiorillo, invited here by the Council of Trade Unions, said she was astonished by the level of hostility towards good-faith bargaining, one of the centrepieces of the new bill due to be introduced in August.

"Quite frankly I am astonished that there could possibly be any opposition to an obligation to deal fairly, which is what this is," said Ms Fiorillo, who is a partner at specialist labour law firm Askew Fiorillo and Glavin.

"I have never in my life experienced opposition to that kind of a concept and to me it suggests there's a certain level of fear mongering occurring."

Ms Fiorillo said Canadian employers had embraced the concept of good-faith bargaining since it was introduced to Canadian federal labour laws more than 50 years ago.

While there was substantial litigation initially to define the duty to act in good faith during negotiations, the legislation had worked effectively and there had been few instances of bad-faith bargaining in recent years.

If problems did arise, the country's labour relations tribunals independently measured conduct against legislation.

"Good faith works in Canada. It's brought a certain level of fairness to the bargaining table," said Ms Fiorillo. "It hasn't been an issue.

"There's no employer objection to the concept of good faith that I'm aware of. There's never been a campaign against it either. "But as with any piece of legislation that's new, there is of course litigation to establish the parameters of that legislation. So there's nothing novel about there being litigation around some of the provisions of the early legislation."

Underpinning the concerns of New Zealand employers is the issue of commercial sensitivity when releasing financial information and plans during contract negotiations.

But Ms Fiorillo said that in Canada it was usually employers who were itching to open their books to unions.

"Many of the employers in Canada are the first to offer financial disclosure rather than rejecting it," she said.

"I suspect what you will see here is that employers will effectively attempt to use the financial disclosure obligations to enhance their bargaining position. As much as they oppose it, they will come up with creative ways to use it to their advantage."

Ms Fiorillo said she had heard of no instances where sensitive commercial information had been leaked.